Fourth Amendment is No Longer Applicable For The Twenty-First Or Twentieth Century

“…The right to resist arrest are no longer applicable for the twenty-first century or, for that matter, the twentieth century” says Indiana Supreme Court Justice Rucker. Last week, the Indiana Supreme Court ruled that when law enforcement unlawfully enters a person’s home, they do not have the right to resist. Within a week, the U.S. Supreme Court also ruled to allow law enforcement the opportunity to enter a person’s home as a reasonable search such as smelling marijuana. With our high courts marring the words unreasonable search and seizure within the Fourth Amendment, it is official that we are guilty until proven innocent and the state can now impose on our freedoms for the sake of keeping us safe.

On May 12, 2011, the Indiana Supreme Court heard Barnes v. Indiana ruling that Richard Barnes assaulted a police officer after the officer entered Barnes’ residence. This case is not about whether the entry was unlawful but whether Mr. Barnes had a right to resist. In November 2007, Officer Reed responded to a “domestic violence” 911 call. When he arrived, Richard Barnes and his wife, Mary, were arguing outside their apartment. When Officer Reed confronted the couple they returned to their apartment. Once the couple entered the apartment, Barnes turned and blocked the door from the officers. Mary told Richard to not do that and let the officers in but she did not invite the officers in herself. To investigate the incident, the officers forced themselves into the apartment. Mr. Barnes then “attacked” the officers, so they subdued and arrested Mr. Barnes. Mr. Barnes was charged with battery on a police officer, resisting law enforcement, disorderly conduct and interference with the reporting of a crime. Whether Mr. Barnes’ actions were justified is not the question, the state’s actions are.

So, the court believes it is unrealistic to expect law enforcement to wait for threats to escalate or for violence to become imminent before intervening, no longer recognizing a person’s right to resist an unlawful entry. As one Justice stated, it is incompatible with “modern” Fourth Amendment jurisprudence. Without preventing the arrest, the level of violence could unnecessarily escalate and risk injuries to all parties.

As Indiana’s Supreme Court was ruling on a person’s right to resist arrest, the U.S. Supreme Court was justifying law enforcement’s reason for entering a person’s home. On May 16, 2011, the US Supreme Court ruled on Kentucky v. King. In Lexington, Kentucky law enforcement was on a drug chase when outside an apartment door, they smelled marijuana. The officers announced their presence and heard “noises coming from the apartment.” So, they kicked in the door under suspicion that evidence was being destroyed. They would find evidence of drugs throughout the apartment. The Supreme Court would overturn previous rulings where “searches and seizures inside a home without a warrant are presumptively unreasonable.” They say the state may overcome the exigencies of the situation’ make the needs of law enforcement so compelling that warrantless search is objectively reasonable under the Fourth Amendment. One of those exigencies is the destruction of evidence.

Does the only dissenting U.S. Supreme Court Justice, Justice Ginsberg, have it right? While law enforcement should not thrust themselves into homes because “a society which chooses to dwell in reasonable security and freedom from surveillance.” This is not a question of whether Hollis King or Richard Barnes was right or wrong in their actions; this is a question of whether we wish to give the state the right to be able to enter our homes for unreasonable searches? After weakening the Fourth Amendment, would these 11 Supreme Court Justices view things differently if the case involved Professor Gates from Harvard in Cambridge, Massachusetts? Would these Justices vote as the three who resided to protect Professor Gates’ rights or reside over a beer summit? We have now entered into an America to where you are presumed guilty until proven innocent or our privacy imposed for the convenience of warrantless search and seizures.

“When the people fear the government there is tyranny.” Thomas Jefferson